bob tarantino

How Not to Argue in Favour of 2-for-1 (Cinco)

This column by Edward Greenspan in favour of two-for-one sentencing credits is little more than a screed against Stephen Harper, so it hardly warrants much attention (and, really, if you aren't going to accept at face value the arguments of criminal defence counsel on matters of the criminal justice system, then you are just far, far too cynical).  Greenspan wanders through the usual rote collection of arguments in favour of sentencing credits: remand is tough, judges need more discretion, Stephen Harper is a big meanie, etc.  Greenspan's argument largely rests on the notion that Stephen Harper is a bad guy, and since Harper's the one who came up with this idea, it must therefore be a bad idea.  Regrettably, Greenspan never mentions that the proposal to eliminate two-for-one sentencing credits didn't fall out of the clear blue sky, nor was it concocted by a cigar-chomping cabal of Reformatory and Rethuglican strategists - it's something that has been repeatedly agreed upon and requested by provincial attorneys general, over a period of years.  Those provincial attorneys general represent parties across the political and ideological spectrum - Conservative, Liberal and NDP.  The measure proposed by the federal Tories has also secured support from the federal Liberals and NDP - something else which somehow manages to escape Greenspan's attention.

But all that is mere throat-clearing for this post.  My favourite moment of Greenspan's column comes about two-thirds of the way through:

Prisoners are given two-for-one credit because pre-trial detention typically involves conditions that are harsh. ... Some plead guilty just so they could be removed from the harsh conditions of a detention centre and be sent to a prison with better conditions. And our prisons aren't spas, believe me.

You're absolutely correct, Mr. Greenspan.  Our prisons are not spas... except when they are:

For nearly seven years, Kuldip Singh Samra has been playing chess, baking cookies, preparing his own meals in his residential-style unit, working in his vegetable garden, taking courses in sociology and jogging on a private track at the minimum security facility that isn't surrounded by a high wall or a barbed-wire fence. Ferndale Institution also boasts a tennis court and weight room.

Or we could talk about the convicted cop-killer who gets to hang out at the minimum security Kwikwexwelhp Healing Village.  Or when first-degree murderers get to board their horses and play golf in prison, or attend football games while on day parole.  I'm on the outside, and I don't even get to tend my vegetable garden or play golf on the government tab - heck, where am I supposed to put my horse?

Music 03.30.09

This is my new favourite webpage for the day: 2008 US Music Purchases.  Things I learned from the numbers at that page which surprised me:

• Metallica, with over 51 million albums sold, is the 4th highest-selling artist of the SoundScan era

• 5 of the top 10 best-selling artists of the Soundscan era are country artists (Garth Brooks, George Strait, Tim McGraw, Alan Jackson, Shania Twain)

• let me reiterate something: George Strait, who is awesome but whose name is unlikely to pass the lips of anybody currently working in the entertainment/celebrity industry (excluding those elements which focus on country music) is the 6th highest-selling artist of the last 20 or so years

• Alanis Morrissette's Jagged Little Pill is still the third best-selling album of the SoundScan era

• Guess who has the seventh best-selling album of the SoundScan era?  Seriously, guess.  No, really, go for it.  You're gonna get it wrong.  In fact, when I say the name, not only will you be stunned that these guys are in the top ten, you'll be stunned that you had forgotten they existed.  One last chance: seventh best-selling album of the SoundScan era?  F***ing Creed.  Dude, come on.

• Kid Rock, and I swear I am not making this up, was one of the biggest-selling artists of 2008 (taking the 6th slot); not only that, but his album Rock n' Roll Jesus, was in the top five best-selling albums of the year.  Look, I love Kid Rock, dearly, but it really hasn't been the same since the midget died.  If Kid's last album was that succesful, comparatively speaking, this industry is friggin' dying.

How Not to Argue in Favour of 2-for-1 (Cuatro)

(updated below)

Join me again, won't you, for another harangue about the two-for-one sentencing coverage (previously here, here, here and here).  This post isn't about the merits (or lack thereof) of the pro-credit position (I'm assuming we're all a little tired of that by now) - this is about something almost as important: the media coverage of the proposals.  Specifically, this is about how atrocious that coverage has been.  I think this all has something to say about the troubles in which news media outlets currently find themselves.

I'm going to pick, again, on Christie Blatchford and Dan Gardner.  Not because what they've provided has been worse than the other coverage, but because they're better than this.  Both are intelligent, popular, well-respected and award-winning journalists and commentators.  Certainly I enjoy reading both of them and respect their work for its insight and the new information and perspectives it provides.  But the coverage and commentary on this issue has just been staggering.  The uniform awfulness of it is indicative not of individual failings, but systemic failure.  Blatchford and Gardner write under the imprimaturs of major Canadian newspapers (the Globe and Mail and Ottawa Citizen, respectively) which are supposed to be indicators of accuracy and objectivity - but clearly are not.  Neither Blatchford nor Gardner seem to have much stomach for defending two-for-one sentencing credits on their own terms (since there's hardly anything there with which to support them), so they rely on second-order arguments - mostly about how awful the Conservatives are.  They pivot into a discussion about how nobody (but particularly the Conservatives) is doing anything to address the clogged court system.

Blatchford: "The extra-credits practice is just a symptom of what everyone who works in the courts knows very well is the real problem - the egregiously glacial pace of Canadian justice - but which no one much wants to discuss, let alone fix."

Gardner (in his column): "So why aren't the Conservatives talking about how to unclog the arteries of the justice system and make it work better? Because that's administrative reform."

Gardner (in comments at this blog): "If a federal government is upset by sentence discounts, they can bring the provinces together to identify the sources of administrative congestion and work together to resolve them. Simple, pragmatic, sensible. But not politically sexy in the least, which might explain why the feds aren't doing it."

It's difficult to overstate just how absolutely, incontrovertibly, undeniably incorrect those statements are.  Does Blatchford honestly believe that "no one wants to discuss, let alone fix" slow criminal trials?  Is she honestly not aware of the numerous federal and provincial initiatives which have taken place in order to address this very issue?  Is Gardner seriously saying that the Canadian federal government has never "[brought] the provinces together to identify the sources of administrative congestion and work together to resolve them"?  Really?  Really?  So when the federal government convened a meeting of all attorneys general across Canada (in September 2008, no less) to discuss this very issue, and announced new funding and programs to tackle this very issue, and then put out a press release about it, what exactly was that all about?  When provincial governments across Canada implemented programs (see Ontario's here) to address this very issue, how did it get missed?  How did that not get taken account of in either the straight news coverage or the commentary about it?  I have not seen a single news item or comment on this matter which acknowledges, at all, that the provincial attorneys general, of every political stripe, agreed in 2008 to support the elimination of the two-for-one credit as one component in a package of comprehensive reforms which aimed at speeding up trials, under the tutelage and with the additional funding provided by the federal government.  Worse, the commentary has ignored that and accused the government of doing the opposite.  We're not talking about uninformed screeching on partisan blogs.  We're talking about professional journalists, who write about this topic constantly, evidently not knowing basic information on the matter which a few seconds of Google searching would have turned up.  How is this possible?  We're not talking here about a mistake, like getting a date wrong - we're talking about negligence.

Please, anyone who's interested in the answer to that bolded question, please read Nick Davies' Flat Earth News.  These are systemic problems.  Too few reporters, too many "commentators", too much demand for content being produced under too-short deadlines.  It would be really, really nice if either of Blatchford or Gardner would revise their accusations about the federal (and provincial) governments "not talking about" this issue, or "doing nothing" about this issue, but I think that, regrettably, won't happen.  Which is a shame.  Because the cynicism that such failure breeds, the resentment about the product which is being produced, does nobody any favours.  Many political problems seem so intractable simply because the arena of public discourse is flooded with so much misinformation that as much time is spent wading through the morass as is spent engaging the actual issues.  And when professional journalists are contributing to the problem, we all, journalist and reader, are rendered the poorer for it.

Update - In the comments, Dan Gardner has objected to the last sentence of the second-to-last paragraph, which he deems a "scuzzy slur".  Having re-read the paragraph, I'm inclined to agree with him - so I apologize to Dan and to anyone else who I offended.  When I wrote the paragraph, I was hoping to convey my judgment that the news industry as a whole, by virtue of its cutbacks, shortsightedness and general emphasis on "punchy" news delivery rather than indepth analysis was producing coverage which is less than accurate, to the detriment of public discourse.  The argument goes something like this: the news industry has a duty to provide accurate coverage, they fail to carry out that duty by means of reasonable efforts, ergo they are negligent.  Whether that argument is accurate or not, it is certainly not fair, absent much more compelling evidence, to level that charge at an individual journalist, which my language certainly did.  Again, my apologies.

How Not to Argue in Favour of 2-for-1 (Tres)

(updated below)

And Dan Gardner makes his valiant attempt at defending the wisdom of the two-for-one sentencing credit.  He fares no better than those behind previous installments of this saga (here, here, here).

The essential thing to bear in mind when examining the Harper government's policies on crime is that they are not about crime. They are about politics.

Indeed.  Why the Ottawa Citizen didn't war-headline their Saturday edition with "POLITICIANS ENGAGED IN POLITICS" is beyond me.

... Since taking power, in part thanks to tough talk on crime, the Harper government has consistently introduced small, cheap, crowd-pleasing reforms at the most politically opportune moments.

So, they should have introduced big, expensive reforms which pissed people off and at politically inopportune moments?  More seriously, this is just meaningless sniping: if the Conservatives had attempted (wielding a minority government, no less) to pass omnibus wholesale criminal justice reform, pundits like Gardner would be grousing that they had bitten off more than legislators could reasonably chew, it was too complicated, it resulted in lack of attention being paid to significant issues, etc.  This isn't criticism, this is filling up your word count.

It has passed redundant laws. It has passed laws it knows will be struck down by the courts. It has delayed passing popular bills, preferring to keep them handy for the next political opportunity.

It would be nice to have some examples here, but let's take Gardner at his word.  (With respect to the "delay" argument, he's referring to an Aaron Wherry post which itself linked to another article, which, if memory serves, made the argument that the Conservatives were being fiendishly fiendish by passing legislation at a time not to the liking of Wherry and the original writer of the article.  Trust me, it didn't make any more sense in the original rendering.)

And, most tellingly, it has refused to make serious and substantial changes that wouldn't be so politically sexy -- tackling the Corrections and Conditional Release Act, for example.

Touche!  Failure to address the Corrections and Conditional Release Act is indeed a significant failing, but it's unclear why getting rid of statutory release or making parole more difficult to obtain wouldn't be "politically sexy" - it's exactly what many of us have been begging for for years.

... So we should be suspicious about the government's announcement that it will eliminate so-called sentencing discounts for time served awaiting trial.  Is it broadly popular? Absolutely. Will it please the Conservatives' disgruntled base? Certainly. Will it make streets safer or the justice system more just? Not in the slightest.

Wrong on two counts: will it make streets safer?  Yes, to the extent that convicted criminals are kept behind bars longer.  A non-trivial amount of crime is committed by recidivists - keep them in jail and, ipso facto, the crimes they would otherwise be committing would not be committed.  Will it make the justice system more just?  Well, that's really the nub of the question, isn't it?  Is the current two-for-one sentencing credit in any way "just"?  The pro-credit side says "yes", the anti-credit side says "mais non".  Let's see Gardner's arguments for the justness of it all.

Let's start at the beginning: Every person accused of a crime is considered innocent until proven guilty. And we do not put innocent people in jail.

This is the origin of bail. If you are charged, you have a right to go free on bail, unless and until you are convicted at trial.

Sometimes this right must be curtailed, however, such as in cases where the accused clearly poses a threat to the safety of others. So someone accused of a crime may end up sitting in jail, awaiting his day in court. If he is convicted, it only makes sense that the time he spent incarcerated awaiting trial should count against his sentence. He was in jail, after all.

But why should he get a discount? Why should the month he spent in jail count as two months -- even three -- against his sentence?

It doesn't make any sense. Surely, this is just our ridiculously soft justice system finding another way to coddle criminals -- and the Harper government should be applauded for eliminating it.

On the surface, yes. But dig even a little deeper -- something the Harper government never bothers to do -- and the reality looks very different.

Hmmm.  Okay.  With you so far.  "Our ridiculously soft justice system finding another way to coddle criminals", yep.  "Dig a little deeper", sounds good.

"Many of the institutions used to house those awaiting trial are old and poorly equipped. Sanitation and living conditions are primitive. Segregation is difficult, and security conditions designed to meet the requirements of the most difficult inmates must apply to all. This means that security in these institutions often exceeds that in institutions housing the convicted. Little is available in the way of programs. Problems of segregation and classification make even work or recreational programs difficult to organize."

And here is where the Great Schism occurs.  At this point, the pro-credit side is rendering its garments and gnashing its teeth - gods, the injustice of it all!  Poor conditions!  Tight security!  No recreational programs!  We! Must! Give! Two! For! One! Credits!  Everyone else is looking at that passage and thinking, "Isn't jail supposed to be like that?"

That passage comes from the Ouimet Report of 1969, but don't think it's outdated.  If anything, the situation is worse today.

Ka-pow!  That's presumably the sound effect that accompanied Gardner's typing of those two lines.  You think this whole "pre-trial custody" sucks thing is something new?  Hells, no - why, they were concerned about this in the 1960s!  And we all know how genius the criminal justice ideas that flowered in the 1960s are, and how they had such a remarkable effect in lowering crime rates, and... actually, you know what?  Memo to pro-credit partisans: please keep quoting things from the 1960s to buttress your argument.  Y'all wear it well.

In 2005, the number of people incarcerated while awaiting trial surpassed the number serving sentences in all provincial jails combined. The remand population is growing so rapidly, it is now 25 per cent bigger than the population doing time in provincial jails.

Okay.  And?

In the latest StatsCan report, which only goes up to 2006, the number of inmates who spend a week or less in remand has fallen from 62 per cent to 54 per cent. Those who spent three or more months in remand rose from four per cent to seven per cent.

As a result, remand facilities tend to be overcrowded, filthy, tense, warehouses where inmates sit and stare at the walls 24 hours a day with no idea how long they'll be there. The older facilities are the worst but newer jails aren't much better. I've been inside the toughest maximum security prisons in Canada and the United States and Ontario's new Maplehurst jail and remand facility is as locked-down and scary as any of them.

Very simply, remand is hell. And that is why, so the argument goes, time incarcerated awaiting trial counts for more than regular time served.

Ah.  If that's how "the argument goes", man, that it is one crappy argument.  Remand is hell!  Fine.  That's an argument in favour of making remand conditions less harsh (or, as Jim Whyte put it, it's an argument for making jail more like remand).  What it is not is an argument for granting two-for-one sentence credits.  The pro-credit side is trying to making two or three stages of an argument, when they have fuel enough only for one.  Remand is hell?  Fix remand.  Granting two-for-one credits is an irrational response to the perceived problem - it doesn't "fix" the "suffering" which occurs in remand - the prisoner still suffered it.  It's also a nonsensical response to the "problem" - why a 2x credit?  Is remand always exactly twice as harsh as jail?  Why not 1.2x credit?  Or 17x credit?  How precisely are we measuring "hellishness" here?  More importantly, granting two-for-one credits is unjust: it reduces time served without reference to any of the goals of sentencing set out in the Criminal Code: it serves the ends of none of deterrence, denunciation, rehabilitation, incapacitation or the promotion of a sense of responsibility in the offender.  In fact, the two-for-one credit actively undermines each of those purposes,  by arbitrarily lessening the punishment inflicted on the offender and illogically reducing the amount of time they spend in that portion of the prison system where rehabilitation programs are available.

But notice that the core issue here is not the sentence discount. It's that far too many people are spending far too long in remand: Bring people to trial swiftly and everything else is moot.

So why aren't the Conservatives talking about how to unclog the arteries of the justice system and make it work better? Because that's administrative reform.

Actually, federal Conservatives spend little time talking about unclogging the arteries of the justice system because "administrative reform" is not the role of the federal government - provincial governments have responsibility for the administration of the provincial courts, where the vast, vast majority of criminal trials occur.  Seriously, do none of our newspaper columnists understand the separation of powers when it comes to the criminal justice system?

Gardner goes on from there - politics, votes, more politics, but it's all a little deflating by that point.  Still, we hunt in vain for a cogent argument in favour of the two-for-one sentencing credit.

(update: Few things are more embarrasing than posting something like the above and getting the spelling of the guy's name wrong.  Gardner.  Not Gardener.  Which I should know: I read the guy's column, his blog, his book.  *sigh*  Apologies to Dan.  The post above has been modified only to fix the spelling of his last name.  (I would also have corrected "rendering" to "render", but since that just reflects poorly on me, I'll leave it intact.))

How Not to Argue in Favour of 2-for-1 (Dos)

The ineffectual rolling out of arguments in favour of the two-for-one sentencing credit continues apace (see here and here).  With the latest, though, are those the swelling strings of pity I'm beginning to hear for the proposition side of this debate?  Ladies, gents, Julius Melnitzer:

How short-sighted can the Conservatives be on law and order? The recent move to restrict credit for time-served while awaiting trial is bound is increase the pressure on courts and judges, already under fire for not getting cases to trial fast enough. Expect a new host of motions for dismissal based on the failure to get accused speedy trials - - - motions that will now have the additional force of the argument that prejudice to the accused has increased greatly because of the restrictions on pre-trial custody credits.

That's argument the first.  As near as I can tell, it amounts to "we need to let judges give two-for-one credits so that they can shove convicted criminals out on the streets more quickly, or else they'll be tempted to get them out there even more quickly than that".  Which probably says more about the attitudes of the judiciary than Mr Melnitzer would like.  It's a little unclear what the argument supporting the motions would be: "Your Honour, it used to be that you were super-nice about handing out credit for jail time; now, my client's trial is taking an awfully long time to get to court - and, yeah, I know that's partly because I keep bringing motions like this one, but roll with me here - so I'm wondering if, in light of the fact that you're no longer allowed to be so super-nice about handing out credit for jail time, you could, just, you know, let him go?"  Even someone as cynical about the criminal justice system as your correspondent here likes to think that there aren't many judges who would fall for that.

As for argument the third, I have little to say about it, mostly because I can make neither heads nor tails of it:

Finally, imagine that Garth Drabinsky and Myron Gottlieb didn't have the means to post bail over the 11 years they stretched out the proceedings against them. Should they be given the same sentences as someone who's done even a couple of years in custody for the same crime? And what does all that say about social justice? Anyone see a s. 15 equality argument here?

What?  First, Drabinsky and Gottlieb are in jail for 11 years, then they're being given sentences of a couple of years, and that's really unfair because some other guy got a sentence, then... Section 15?  I like to think I have at least a rudimentary grasp of the English language and forms of legal reasoning, but that one has me completely baffled.  Reader suggestions on proper interpretation are warmly welcomed.

But argument the second is where Melnitzer's piece really shines:

You've also got to wonder how effective such legislation can be. Surely judges looking at an accused who has served an unduly long time in custody will find arrows in their quiver of sentencing discretion that will allow them to take into account the hardship of time in the local bucket. It's just that the judiciary l have to do a little more dancing in their reasons. What does that say about transparency?

The utter shamelessness of that passage is just breathtaking.  Let's see if I've got the argument straight: if we eliminate two-for-one sentencing credit, judges will indulge in "a little more dancing" in order to hand out the sentences they really want to hand out.  So, on Melnitzer's argument, the judges will engage in a bit of sleight of hand... and this is somehow the government's fault?  Howzabout the judges just, you know, not engage in the "dancing"?  More shameless, however, is the intimation that the current system is the very model of "transparency".  It would be one thing if sentencing decisions were in any meaningful way clear about the amount of time to which a convicted criminal is being incarcerated, but they aren't - figuring out the actual punishment that someone is receiving is an exercise akin to the most obtuse Captain Midnight decoder ring puzzle.  Instead of getting reasons which say things like "nine years, but with the two-for-one credit, and taking into account eligibility for parole, and day parole and statutory release, more like fifteen minutes, which seems about right", they just thunder "nine years!" and then the victim (and the rest of us) are reduced to stupefaction when it dawns that, in Canadian criminal justice-speak, that means "fifteen minutes".  Eliminating two-for-one sentence credits isn't a magic bullet which will result in "truth in sentencing", but it's a step in the right direction.  To argue that obviating sentence credits will somehow result in less transparency is just bizarre.  And since two-for-one credits should stand or fall on their own merits, none of which have been made evident by any of the arguments which have been presented, we're still faced with the question of quite why they should be retained.

How Not to Argue in Favour of 2-for-1

It was just a matter of time until someone trotted out the "clamping down on judicial discretion" argument against the elimination of the 2-for-1 sentencing credit.  James Stribopoulos cheerfully obliges.  Here's the thing: we can tell, right off the bat, that those arguing in favour of "judicial discretion" are engaging in bad faith.  How can we tell?  Because they only ever want to increase "judicial discretion" in order to enable judges to hand down more lenient sentences.  You will never, ever, under any circumstances, hear one of the supposed proponents of "judicial discretion" make the argument that we should eliminate the caps on sentencing contained in the Criminal Code - under no circumstances should judges be able to indulge their "discretion" to, say, levy an even harsher punishment on a convicted criminal.  No, "discretion" is only allowed to flow in one direction - away from punishment.  If the "judicial discretionists" were even marginally consistent, they would be lamenting the fact that the Youth Criminal Justice Act, f'rinstance, prohibits judges from exercising their "discretion" when it comes to first-degree murderers and sentencing them to longer than a few years imprisonment.  You will never hear them say that they think the cap on aggravated assault of fourteen years imprisonment should be lifted, otherwise the legislature is "interfering" with the "discretion" of judges.  I could go on.  Suffice it to say that since the judicial discretionists don't take their own argument terribly seriously, neither should anyone else.

But Stribopoulos goes on.  It is unfair not to give 2-for-1 credit on Stribopoulos' account (left completely unexamined is why 2x is the magic number - why not 1.3x? 2.4x? 16.2x?)  because conditions in pre-trial detention facilities are "comparatively harsh": overcrowding, "few, if any, activities or programs and minimal opportunities for physical exercise".  (I know, I know - I also had to pick myself up off the floor when I read of the lack of "activities or programs", but soldier on.)  It's unclear, however, how that is argument in favour of sentencing credits and not, say, ameliorating the "comparatively harsh" conditions.  If conditions are harsh, fix them - but why would that translate into a mystical amplification of time served?  Don't forget, we're not giving sentencing credit to people who are innocent of a crime - we're giving it to people who have been convicted of the crime.  An argument a few orders of magnitude stronger than "being in pre-trial detention, like, sucks" will need to be brought to bear here.  "In short," Stribopoulos thunders, "these are very unpleasant places to spend time."  Well, good.  It's prison.  It's supposed to be unpleasant.  Can't do the time, don't do the crime, etc. etc.  If proponents of the 2-for-1 credit are trying to make an argument about how unfair it is to put people who are ultimately determined to be innocent in pre-trial detention, then that's an entirely separate discussion - the answer to which is not "give everyone a 2-for-1 credit".  If the state has harmed an innocent individual, then the state should be obliged to compensate that individual, not the guy down the hall.

Perhaps acknowledging that this is a less than fruitful avenue of rhetoric, Stribopoulos moves on:

The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behaviour and the offender is not eligible for parole.  For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence.  In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission.  Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.

This is where things start getting a little wonky - it's not Stribopoulos' fault, the wonkiness lies at the very heart of the entire 2-for-1 credit position.  Take Accused A and Accused B.  Both spend two years in pre-trial detenion.  Once the trial occurs, A gets sentenced to 2 years and B gets sentenced to 14 years.  An unfairness has occurred vis-a-vis A: he has spent 2 years in confinement, when he would have been entitled to parole at 1/3 and statutory release at 2/3 of that time (we'll ignore for now the rampant idiocy in the statutory release scheme).  But, again, how does granting 2-for-1 credit to B (who will spend two less years in prison than he should) in any way address the unfairness to A?  If we've been unfair to A, let's compensate A in some fashion - giving B a windfall is nonsensical and counterproductive.

Then everything spins out of control.  The Conservative efforts (supported, according to news reports, by the Liberals and NDP, a fact which garners no attention from Stribopoulos) are motivated by "a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves".  No empirical support?  Really?  Let's put this in ways that the 2-for-1 advocates can understand: Canadian judges are too lenient and are treating criminals with kid gloves.  18 months for killing someone while drunk driving (less parole, statutory release and 2-for-1 credit, of course).  Five years (less parole, statutory release and 2-for-1 credit, of course) for "a vicious racial assault on a disabled black man" by someone who had 43 prior convictions.  Fourteen years (less parole, statutory release and 2-for-1 credit, of course) for a brutal rape - the eighth which the man had committed.  Five years (less parole, statutory release and 2-for-1 credit, of course) for repeatedly raping a baby.  I could go on.  But, really, I don't have the stomach for it today.  So, yes, Mr. Stribopoulos, leniency and kid gloves - anything that can be done to put a halt to that, I, and many, many others, am and are all for it.

From there, things get downright surreal.  As with all the best Canadian commentary, fingers start being pointed at the United States:

It is interesting that this was the sentiment [i.e., restricting judicial discretion in sentencing] that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences.  It is now relatively well accepted that these efforts have not succeeded in deterring crime.  What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment.

Frankly, that's just bizarre.  US crimes rates (particularly violent crime rates) have collapsed compared to their highs in the 1980s and 1990s.  Let me quote from this article, which everyone is encouraged to read: "the increase in incarceration over the 1990s can account for a reduction in crime of ... about one-third of the observed decline in crime" (page 178-179 of the article, 16-17 of the .pdf).  The "relatively well accepted" notion of Stribopoulos's argument is not "accepted" at all.  Then he trots out the old canard that it is not punishment that deters crime, but "certainty of apprehension" which does all the work.  If that is the case, then why not propose a system based on no punishments whatsoever, or punishments only of one day, but massively increased police presence, so that apprehension is all but assured?  Few propose it, for a variety of reasons, but most important of all, because we know that an exceedingly small number of people would support it.  And why?  Because criminal justice, pace Stribopoulos, is not all about "deterrence", it's in significant part about denunciation and retribution.  But Stribopoulos, in the repetition of a technique used by criminologists and pundits to forestall debate on these issues, refuses to engage in matters of whether criminals deserve to be punished, or whether they deserve to get magical reductions in their sentences because judges are exercising their "discretion".  Instead, he attempts, falteringly, to rely on statistics and arguments which don't withstand the barest of scrutiny.

Christie Blatchford: Fail

(updated below)

If you're looking for further evidence of how corrosive to public discourse is the format of the standard newspaper op-ed column, you could do worse than Christie Blatchford's latest.  Having written a handful (literally, you could hold the accumulated words in one hand) myself, the basic formula for op-ed column writing goes like this: (1) take a recent event or set of commentary on a recent event; (2) say "nuh-uhhh!"; (3) stretch that out into about 800 words; (4) remove any context or nuance; (5) submit.  Here's the nub of Blatchford's column:

All this is by way of saying that the federal Conservatives have the trees firmly in their elephant-gun sights, but remain steadfastly oblivious to the forest.

Justice Minister Rob Nicholson was yesterday talking up the Tory plan to end the notorious "two-for-one" practice; the government will introduce legislation to this effect tomorrow.

But the problem isn't the double-time - or triple time - credits, or even the judges who dispense them like bonbons.

The extra-credits practice is just a symptom of what everyone who works in the courts knows very well is the real problem - the egregiously glacial pace of Canadian justice - but which no one much wants to discuss, let alone fix.

Event: Announcement of legislation to remove the two-for-one sentencing credits which, as Blatchford memorably describes, are handed out by judges "like bonbons".  Columnist response: nuh-uhhh!  Context and nuance, and, hell, basic factual information?  Missing.

The "real problem", pace Blatchford, is the slow pace of trials (especially criminal ones).  Let unexplained is quite why both the sentencing credit and slow trials can be real problems.  Are we only allowed one "real" problem when discussing anything as complex as the administration of criminal justice? Why? Sez who? And by means of what bizarre moral calculus does Blatchford conclude that according convicted criminals a two-for-one credit is not a problem?

Most egregious of all, however, is the collosally incorrect statement that "no one much wants to discuss, let alone fix" the problem of slow trials.  Really?  Really?  So when, say, the Attorney-General of Ontario announces measures which are intended to "reduce the time to trial and number of appearances by 30 per cent over the next four years", does that mean that the AG is "no one", or that this does not qualify as "much" or is it a failure to constitute "discussion" or "fix"ing?  Heck, when the Ontario Ministry of the Attorney General has an entire project devoted solely and exclusively to "reduc[ing] delay in Ontario's criminal courts", how is it possible that neither Blatchford (whose beat is crime) nor her editors (who beat is correcting Blatchford) know nothing about it?

(update: The "entire project" referred to in the last paragraph above is the Justice on Target initiative)

Entertainment, Media and IP Law 03.25.09

Peeking behind the curtain:  Michael Geist comments on the decision of an Ontario judge to order the disclosure of all information relating to discussion board participants by the owners of the website.  Geist's conclusion: "I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met."

The grandest licensing scheme of them all:  Geist (him again) reports and comments on the Songwriters Association of Canada proposal to create "a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms".  The most interesting part of the initiative is its potential for extension to video works as well, since ACTRA has evidently expressed some tentative openness to considering the issue.

Bloodsport:  Barak Y. Orbach has written a paper about the origins of US film censorship - which oddly enough apparently has its origins in films of boxing matches in the late 1800s (ht: Media Law Prof Blog).  Download the paper here.

The most painful headline ever:  In reporting on the news that a Toronto firm has been tasked with licensing and protecting the trade-mark interests of Bob Marley's estate, the CBC elected to use this headline: "Toronto firm gets up, stands up for Bob Marley trademark rights".  Ow.  (Oh, and shouldn't the CBC style guide prefer the Canadian iteration "trade-mark" to the American "trademark"?)

"It costs money even to talk to the copyright holders": Everybody else has already talked about Sita Sings the Blues and its innovative release strategy, but I would be seriously remiss if I didn't mention it as well.

Consistently in the middle of the pack:  The Canadian Intellectual Property Office released its 2007-2008 Annual Report a few weeks ago.  9,321 copyright applications were received, compared to over 47,000 trade-mark applications, 5,174 industrial design applications and 0 (count 'em) integrated circuit topography applications.

Media 03.25.09

There are funnier things out there than watching journalists comment on the collapse of the newspaper industry and media bias, but I can't thing of them off the top of my head.

Here's Jonathan Kay:

CNN has no discernible bias I can detect -- but I stopped watching it when it turned itself into the all-anthrax channel in late-2001, boosting ratings by convincing millions of Americans they were about to play the role of extras in a Stephen King bio-apocalypse novel.

Uhm... right.  Yes, I suppose the only way one could possibly conclude that "CNN has no discernible bias" is by, say, not having watched them for, oh, the last seven or so years.

Oh, and the next time a journalist patiently explains to you that the "problem" facing journalism is a "decoupling of advertising from news", ask them to explain how "decoupling advertising from news" results in the utter collapse of trust in the press as evidenced here (ht: Douthat).

"Who is helped by treating her as a youth?"

You might recall that a couple of weeks ago I expressed some... let's call it skepticism... about the Globe and Mail's new-found admiration for sentences that actually, you know, had some teeth to them.  Yesterday I realized what the problem was: the Globe isn't interested in tough sentences, they're only interested in "tough" sentences in the context of the Orwellian milieu concocted by the Canadian criminal justice system - which is to say, sentences which aren't "tough" at all.  Take (please) yesterday's Globe editorial on the appropriate sentence to be given to "M.T.", the 15-year old girl behind the murder of Stephanie Rengel.

The Globe editorial writers have furrowed their brows and pronounced that, yes indeedy, M.T. deserves a "life" sentence (Chris Selley called the editorial "convincing" - since he evidently needed to be convinced).  The crime committed by M.T., as described by the Globe, was, and I quote, "monstrous", requiring a "strong response" to demonstrate "the value this society puts on life".  Well, I guess we're all pretty much screwed: if the strongest sentence which can be handed to M.T. is supposed to demonstrate the value our society puts on life, don't bother cashing in yours, 'cause you won't get enough to buy even a used CD.

Under the Youth Criminal Justice Act, even if given the most stringent possible sentence, M.T. will be eligible for parole in a maximum of seven years.  Which means she would walk out of jail completely free before she turned 23.  And that doesn't take into account day parole, for which she will be eligible even earlier.

This is a particularly humorous portion of the editorial:

Perhaps in five to seven years - let's hope it's at least six - she will not be ready. But perhaps in 10 or 12 she will be.

I love that.  Yes, yes, let's "hope it's at least six" - because, really, six years for participating in first degree murder, that's the proper response.  Five would just be unconscionably low, but "six" has nice whole integer even number roundness to it.

Even better:

Perhaps, too, she needs the threat of life behind bars to force her to deal with whatever made her wish to kill in cold blood.

Oh, absolutely.  Since actually participating in the murder didn't bring home any consequences for M.T., and since none of getting arrested for it, being tried for it or being convicted of it have succeeded in impressing on M.T. the seriousness of her crime, I'm sure that "the threat of life behind bars" will be just the thing that does it.  I'm sure there are unplumbed depths of stupidity out there - and I'm also sure that the Globe's editorial writers will be in the vanguard of getting to the bottom of them.

Nowhere in the Globe editorial is raised the question of whether the ludicrous sentences available under the YCJA are appropriate in and of themselves - nor is the bizarre intellectual and moral incoherence of the youth/adult sentencing scheme addressed.  Most glaring of all is the fact that the Globe never manages to address the issue which should animate these discussions: not "deterring" others, not "rehabilitating" the criminal, not even "protecting" the public - but the simple question of retribution for the crime committed.

Great Moments in Canadian Sentencing 03.25.09

A son of an internationally acclaimed reggae singer will likely spend less than another six months in jail after being given a 6 1/2-year federal prison sentence yesterday for killing a child under his care.

Justice Bruce Durno sentenced Garfield Anthony Sibblies, 40, of Brampton, yesterday. But since Sibblies has spent the equivalent of almost six years in custody – based on the usual two-for-one credit inmates receive for pre-trial incarceration – he could be released after serving two-thirds of the remaining six months in a provincial jail.

Sibblies pleaded guilty Nov. 28 to manslaughter in the March 22, 2006, death of baby Elijah, who was six days short of his first birthday.

An autopsy revealed the boy had 38 injuries but could not determine a single cause of death.

For whatever bizarre reason (*cough*) Bob Mitchell's Toronto Star story resolutely refuses to point out that Sibblies has only spent less than three years in prison - preferring instead to couch it in the magical formulation "the equivalent of almost six years".

Thankfully, it looks like the absurd practice of granting "2 for 1" credit for pre-sentencing custody is about to come to an end (though I won't hold my breath).  My favourite part of that story is this:

Irvin Waller, founding director of the Institute for the Prevention of Crime at the University of Ottawa, said the legislation is just another example of politicians being tough on criminals and not on crime.

Yes, gods forbid that we be "tough on criminals".  They already have so many problems, so, really, why would we want to add another one to their list?

Pleased to Meet You - The New "Know Your Client" Regime

CBA PracticeLink has published my article "Pleased to Meet You - The New 'Know Your Client' Regime", which aims to be a primer on the new client identification and verification rules which have recently come into effect for Canadian lawyers.

Entertainment, Media and IP Law 03.15.09

New techniques: A couple of interesting stories this past week about emerging Canadian talent - David and Ian Purchase used YouTube to get noticed by Hollywood, and one-eyed Toronto filmmaker Rob Spence is planning on using a camera embedded in a fake eye to film a documentary about "the rise of global surveillance" (also here).

Flashpoint opens the door: One of the funny things about Hollywood is the herd mentality - if something works once for one guy, everybody's got to follow suit.  Thankfully, this time the trend is working in favour of Canadian film and television producers.

Defamed today, defamed forever: An interesting discussion over at slaw about whether the time period for launching a defamation action over an online publication should begin running from the first time it was placed online or whether it should start afresh every time the online publication is accessed regardless of how long that is after initial publication (in England, the answer is evidently the latter; in the US, the former).

New Media Fund? Meh: Concerns are expressed about the newly constituted Canada Media Fund and conflicts of interest.

Backstage blogging: Gordon P. Firemark muses on the dangers of letting talent talk about their work experiences while still on the job.

Fairey Use?  More discussion on the AP/Richard Fairey copyright dispute here (Knopf) and here (Wired).

ImageStamper: Plagiarism Today provides some in-depth coverage on an interesting new service which "stamps" a Creative Commons license onto digital images.

Inaccurate sales figures? Surely you jest: Clive Cussler ordered to pay nearly US$14 million to production company over misrepresentation of the number of copies his novels had sold.

The children are our future: Fascinating interview with Terry McBride of Nettwerk Music Group here.

Politics 03.15.09

When Liberal senators are the ones saying the smartest things coming out of Ottawa, there's a problem: This column by Colin Kenny, which was absolutely gratis advice to the Conservative government, was dead on:

What I find curious about the budget is that the government didn’t look to the huge gaps in Canada’s security matrix and take measures to fill them with what Canadian security agencies need so badly: people.

We’re short of soldiers. We’re short of cops. We’re short of spooks. We’re short of border guards. And we are also short of equipment for the military, much of which could be manufactured in Canada.

Yet the closest the government has come in recent months to making major investments in Canada’s security agencies was the announcement of a $274-million contract to purchase 1,300 military trucks from Navistar International Corporation. The company will build the trucks at its Texas plant, despite the fact that it has a plant in Chatham, Ont.

One can only assume, regrettably, that no one will pay any attention.

Who? Whom?  News that Ross Douthat is getting the "conservative" columnist slot at the New York Times prompted a variety of responses from Canadian commentators (from the positive to the, er, not quite so positive).  Unfortunately, what news of Douthat's ascension does highlight is the amazingly sclerotic state of conservative politics in Canada.  To recap: Douthat graduated from Harvard earlier this decade, began contributing to the blog The American Scene, was quickly identified as a thoughtful commentator and excellent writer, and his talent was nurtured and promoted through a variety of conservative publications like The National Review, The Weekly Standard and the Wall Street Journal.  And Douthat is only one of a number of young conservatives who are having an impact - can anything even remotely similar be said to have occurred in Canada?  If tomorrow the Globe and Mail or the National Post were to announce that they were opening up a new column on their op-ed page for a conservative commentator (stop laughing, you in the back), who would the possible candidates be?  Has the explosion of political blogging in Canada (which, for those taking notes, occurred at least as early as 2003), a process which effectively did the job for editors and publishers in identifying and promoting talent, resulted in any new voices being given prominence on the national stage?  And I don't mean getting posting privileges on Full Comment, or asking Chris Selley to offer a clever round-up of what other columnists are talking about.  A handful of conservative bloggers have placed an op-ed or two in the Post over the years, but that's the extent of the development of a new generation of talent (the same, of course, holds true for bloggers on the other side of the ideological divide, but they can complain on their own blogs).  The last time a significant new crop was sown was with the establishment of the National Post more than a decade ago, but those sinecures have been held pretty close to the chest (newsflash: Lorne Gunter still thinks global warming is a crock).  A few years ago when the Post opened up an ongoing columnist position, it gave it to... wait for it... Warren Kinsella.  Seriously.  A monkey could have predicted that would end up badly for both sides.  Guess what?  It did.  If not even the only nominally conservative national outlet in the country can be bothered to award column inches to conservatives, who will?  Adam Daifallah, the closest thing we have to a Douthat (in all the best senses, though Adam's rise preceded the rise of blogging) and Tasha Kheirridin wrote a book in 2005 which called, begged, for the development of a Canadian conservative movement rooted in think tanks and innovative funded media outlets - how's that worked out for us, especially considering we've had a (nominally) Conservative government for three frickin' years now?

Publishing 03.15.09

When they conduct the post-mortem on the book publishing industry, the cause of death listed will be suicide: "Six years after the publication of her blockbuster best-selling novel, “The Time Traveler’s Wife,” Audrey Niffenegger has sold a new manuscript for close to $5 million, according to people with knowledge of the negotiations. It is an especially significant sum at a time of retrenchment and economic uncertainty in the publishing world."  I'm sorry, that's just awesome: publishers are crying poor, bemoaning the state of the industry, and what do these guys decide to do?  Shovel $5 million out the door (in a bidding war, no less).  What's fascinating is the response from some observers of the industry: over at io9, they note that "everyone seems to agree she earned it"; Robert J. Sawyer thinks that Niffenegger "deserves it".  Why?  Because her previous novel was really good.  Evidently the royalties she received for that first novel just weren't payment enough for how brilliant the work was.  Here's a guess: this will turn out to be another Charles Frazier Thirteen Moons moment (following the success of his novel Cold Mountain, Frazier received an $8 million advance for his novel Thirteen Moons - it is estimated that the publisher lost more than $5 million dollars on the book).  But even if that guess is wrong, maybe publishers shouldn't be putting themselves in a position where losses of that magnitude are even a possibility.  How many other books have been foregone because $5 million dollars was spent on the next Niffenegger book (at $50,000 a pop, for example, that's 100 other books that could have been published)?

Digital delivery: The Star reports on the BookNet Canada Technology Forum, which discussed the future of digital book delivery.

Money: MastHead Online reports on salaries in the magazine industry.

The fact that this is a new development is a little disturbing: Excellent column at MastHead Online about something that should be standard across all news publishing media: fact-checking.  The comments are also well-worth your time.

New business model still a little bit confusing: Richard Curtis tries to pull back the curtain on those bizarrely high e-book prices.  The answer?  Publishing industry sales reps earn commissions only on sales of printed books, not on e-books.  (Curtis also attributes it to the fact that "The profit to be made on a successful 'book-book’ is at this time far greater than that made on an e-book", but it's difficult to discern what he could possibly mean by this.  How can the sale of a physical copy of Book A reap more profit than the e-book copy of Book A when the e-book copy carries no printing costs, no shipping costs, no storage costs, (apparently) no commissions to sales reps, etc.?)  Curtis also notes that progress on e-books was hindered for "almost ten years" by "[c]opyright issues, technical problems, muddled business models and a lack of standards".  Recall what I said above about "suicide".  Yeah.

Ain't got time to bleed: Sci-fi author and publisher Robert J. Sawyer laments the lack of professionalism among aspiring writers who engage in multiple submissions.  I always find that a fascinating one.  I can't think of another industry convention which is as divisive as a prohibition on multiple submissions - authors are held hostage by the slowest car in the caravan, and it provides no incentive to publishers to hurry up and read through submissions and make a decision, since they can (assuming everyone follows the rules) rest assured that they aren't competing against another editor considering the manuscript at the same time.

Great Moments in Canadian Sentencing 03.15.09

It's always sort of cute when outfits like the Globe and Mail suddenly discover to their horror that, their prior protestations notwithstanding, some judges had out manifestly unfit sentences.  Mohammad Momin Khawaja, convicted of financing and facilitating terrorism, having shown no remorse, received a 10.5 year sentence, on top of the 5 years he's already served (with no credit for those five years).  Given that the maximum sentence was life in prison without the possibility of parole for 25 years, the sentence handed down begs the question of what else could possibly be needed to warrant the maximum sentence - as Dan Gardner notes, "If Khawaja does not deserve the maximum sentence, none does."  Indeed.  And unless the Crown elects to appeal this sentence, no one ever will get that maximum sentence. 

(There are, of course, those who think the sentence handed down is just hunky dory - from the above-linked CP report: "...academic Wade Deisman, who teaches police studies at Kwantlen Polytechnic University in Vancouver, couldn't disagree more. 'It works out to be about 15 years, and I think that sounds about right,' said Deisman.  'We live in this climate now where people just want longer and longer sentences. It's hard to know what's going to slake this appetite.'"  Totally.  People are just so mean when it comes to the sentencing of convicted terrorists.  More hugs for everyone!)

Media 03.15.09

There have been a number of articles and posts written in the last few days about the impending collapse of the newspaper industry as we have come to know it (see, f'rinstance, Clay Shirky here and the Globe and Mail here).  The litany is the same: technological change, the collapse of ad revenue, etc.  There is, unfortunately, one minor factor almost all of the recent commentary has overlooked.

Anyone interested in the future of the news media and journalism absolutely must read Flat Earth News by Nick Davies, an award-winning Guardian reporter.  Davies provides an absolutely mind-boggling chronicle of the lies, inaccuracies, bias, lack of accountability and general incompetence which inform so much of the newspaper coverage with which we are provided.  Some of the stories which Davies provides simply beggar belief.  You want to know why a fairly significant chunk of people are no longer willing to pay for news content?  It's because, over the last decade or so, it has been demonstrated to us, over and over again, just how awful some of the provision of that content is.  The news media has made it abundantly clear that they deserve neither our loyalty nor any particular amount of deference or respect - least of all our dollars.  Maybe there's a "business model" which will work when a significant amount of your potential customer base thinks you're shoveling slanted garbage at them, but so far no one seems to have stumbled across it, oddly enough.

Mark Evans, a former tech reporter for outlets such as the National Post and the Globe and Mail, commenting on the Globe story linked to above, offers this thought:

It’s the kind of journalism that newspapers need to do because it offers insight and perspective (aka tell me what it means) about an issue that’s been attracting a lot of news coverage recently.

To which my immediate response was, "Oh, dear god, please, Mr Newspaper Maker, don't offer me your insight or your perspective".  Please, please, please just report the news in as objective a manner as possible.  That's all we want from you.  Really.  Don't provide me with "opinions" or "insight" into "what this really means" - I can get all of that for free, and in many cases of higher quality, on the internet.  Just get your facts straight.  It's really not that hard.  Don't spend money on your opinion columnists, or your restaurant reviewer, or your music critic - save all that money and plough it into paying journalists to report the news.  Period.  Full stop.  And, for the love of all that is holy, please fact check the stuff you print.  Please?  Three paragraphs into that aforementioned Globe and Mail piece and there's already mistakes:

San Francisco is accustomed to firsts, but usually they are more hopeful ones: It's where hippies congregated for the Summer of Love, where students spearheaded anti-Vietnam rallies and where Harvey Milk became the first openly gay political candidate elected to office.

*sigh*.  Look, I understand that Sean Penn just came out with a fine movie in which he rendered a fine performance and we're all very excited about it.  But it's really fairly simple: Harvey Milk was not the first openly gay political candidate elected to office.  Harvey Milk was elected in 1977.  Allan Spear was a closeted gay man when he was elected to the Minnesota legislature in 1972.  Spear came out of the closet in 1974.  He was re-elected in November 1976, a year prior to Milk.  Elaine Noble came out in 1974 and was elected to the Massachusetts legislature that same year - four years prior to Milk.  You know how long it took me to find that out?  About 14 seconds.  Couple that with the fact that one of the "hopeful historic firsts" which these reporters attribute to San Francisco is the Summer of Love and not, say, the signing of the United Nations Charter, and it becomes clear rather quickly that any purported "insight" or "perspective" which is on offer from the Globe and its vaunted stable of professional reporters and editors is of negligible value.  And the industry expects people to pay for this sort of stuff?  Please.

"ahead of the jailers and tormentors"

Chris Selley, Rosie DiManno and the Globe editorial board evidence once again why reporting, and opinionating, about criminal justice matters by the media is so often simply not to be trusted.  From misstatements of basic fact to outright lies to selective obfuscation in order to serve their predetermined political prejudices, the coverage of the Ashley Smith Report by the New Brunswick Ombudsman and Child and Youth Advocate has been almost uniformly pathetic.

Just a minor sprinkling of the errors and lies:

• Selley and the Globe insist on calling Smith "mentally ill" - she wasn't, as was determined on multiple occasions by certified psychiatrists and psychologists (see pages 15, 16 and 19 of the Report).  I know that generally we like to substitute the ideological opinions of the Selleys and Radwanskis of the world for trained professionals, but perhaps this once they could refrain from doing so.  Interestingly, DiManno seems not have gotten the memo, since her entire argument is based on the notion that, in this entire business, Smith was the only "sane" one.

• DiManno, in particular, seems to have some issues understanding basic concepts such as what constitutes being an "adult".  Ashley Smith was 19, an adult, when she died.  She was 18, an adult, when she was transferred to... wait for it... an adult correctional facility.  Within the first two sentences of her column, DiManno expresses shock that an adult was transferred to an adult facility, even going so far as to, incorrectly, label Smith as having "youth status".  By the end of her column, DiManno is reduced to calling the 18-year old Smith "a minor".

• Other times, they'll just make things up.  Like when the Globe asserts that Smith had been transferred "17 times".  Had they read the Report, they would know that they just made that number up out of whole cloth (or cribbed it from DiManno's column, which also contains the error).  She was transferred nine times (see page 7 of the Report).  The Globe, in getting all hysterical and describing the "Dickensian" conditions in which Smith was held, they get all het up about the fact that she was denied a mattress.  This is a lie.  As page 41 of the Report describes, she always had a mattress.  Except sometimes she would destroy her mattress, so it was replaced with an indestructible mattress.

• There's the pathetic dismissal of the severity of Smith's crimes, which underlies both the DiManno and Globe pieces.  DiManno makes it sound like as if Smith's biggest crime was being a poetic iconoclastic teenager.  The Globe prefers to call her crimes "petty", as if she had been caught stealing comic books from the corner store.  Her crimes weren't petty.  She stalked a member of her schoo's staff (page 15).  At the age of 14, she was physically assaulting strangers on the street and harassing people, to the point where she got banned from the public transportation system and, finally, charged by the police (page 15).  At the age of 15, there were more instances of physical assault (page 16).  On the three occasions when she was placed in foster homes, her "violent behaviour" resulted in her being removed from them (page 18).  While in secure custody, she repeatedly assaulted staff (pages 19-20).

• Perhaps the most egregious stupidity fomented by the Selley, DiManno and Globe pieces, however, is the notion that Smith was somehow the victim of an uncaring, brutal system which locked her up and threw away the key at the first sign of any hint of teenage defiance.  Nothing could be further from the truth.  Here is a small sampling of the hysterically long list of "non-punitive" (and entirely ineffective) "alternative" methods used with Smith: throughout 2001-02, Smith's teachers attempted a variety of "in-school" methods to ensure her compliance with school rules and temper her disruptive tendencies - none of them worked.  Six school suspensions followed.  Then followed seven placements at an "alternate educational site".  Then followed a five-week suspension, followed by more placements in "alternative educational institutions".  Then, as a result of the numerous crimes she was committing, she was sentenced to probation and enrolled in the "Instensive Support Program".  Then she was sent to the "Youth Treatment Program".  Then, all else having failed, she was finally sent to "secure" custody at the New Brunswick Youth Centre.  Releases on probation resulted in further criminal acts, followed by further sentencing to secure custody.  To call these "Dickensian" conditions is pathetic - either the Globe editorial writers (who penned the phrase) have never read Dickens or never read the Ashley Smith Report; given the usual intellectual calibre of people writing those editorials, I'll wager the answer is "both".  To argue, as Selley does, that "wholesale reform" is necessary, indicates that he evidently literally has no idea what happened with Ashley Smith.  To argue, as DiManno does, that Smith was merely high-spirited is, simply, delusional.  Regrettably, that's the level of public discourse we are treated to by our media.

The Fragility of Digital Delivery

This story, about YouTube blocking music videos in Britain due to a failure to reach a new licensing agreement with the PRS (Performing Rights Society), which collects royalties in respect of and administers the licensing of the public performance right of songwriters, highlights the fragility of the music delivery mechanism in a digital age: due to the mind-numbing complexity of managing the rights issues involved, any rupture in the chain results in the consumer being unable to access music.  This is a relatively trivial example, since no one exactly *needs* to watch videos on YouTube, but if the great hope of subscription services is ever realized (i.e., listen to (but not be able to download) any music anywhere at any time), it will become critical: one broken-down negotiation and suddenly you can't listen to the music anymore (obviously excluding music you already own and can play on your own).

"the potential copyright liabilities here"

Chris Bennett & Jeannine Tse provide a concise analysis of the copyright implications of "sharing" electronic versions of articles by means of email and blog posts.

Great Moments in Canadian Sentencing 03.10.09

Of all the idiotic sentences handed down, none are more idiotic than those handed down in drunk driving cases.

A Mississauga father of two young children today was given an 18-month jail sentence for the drunk driving death of a taxi driver.

... In sentencing him, Justice Michael Tulloch told Harrison that he seemed to be "a decent man" with many positives but he was lucky he didn't receive a prison sentence.

... But he drank and crashed his Mercedes head-on into a taxi with four young men, who chose to be driven home instead of risking driving because they had been drinking.

"Impaired driving is an epidemic in our society and needs to be denounced," Tulloch told a Brampton court.  "The gravity of the offence and the degree of responsibility requires incarceration..."

... The convicted man was already on bail - and under a court order to not consume alcohol - when he killed Rayment on July 2, 2005 while impaired, court previously heard.

Saying that drunk driving "needs to be denounced" and then doing nothing of particular note to "denounce" it is a particularly nice touch.

Entertainment News

Some interesting developments in the Canadian media and entertainment landscape over the past few days:

• the federal government has confirmed that it will not be providing additional funding to the CBC this year

• British Columbia saw a nearly 30% increase in motion picture production spending in 2008 (which coincided with increased tax credits)

• the Canadian Television Fund (CTF) is being merged with the Canada New Media Fund, to create the Canada Media Fund (inventiveness in nomenclature is not a characteristic much prized among the bureaucracy)

• John Doyle ponders how it is that television stations are going out of business when people haven't stopped watching television, and concludes that there is no "crisis" and that it's largely "part of a strategy to force a radical redrawing of the Canadian TV landscape"

CLB Media Presents

Cripes.  Step away from the blog for a few days to concentrate on writing an article, and everything goes completely bonkers.  Canadian Lawyer magazine and Law Times each have a whack of interesting things in them:

• "War of the Words" - a cover story on Richard Warman, Doug Christie and the ongoing battle against Section 13 of the Canadian Human Rights Act.

• A nice expose on the machinations behind changes to the governance of the legal profession in Ontario, shining a light on just how obstructive those intent on keeping things exactly the way they have been are willing to be (random examples: the task force created in 2006 to study the matter still hasn't delivered its report; reactionaries in the system are now fighting tooth and nail over the order of the process - debate issues and then solicit views, or solicit views and then debate the issues?).  The best moment is when a current bencher argues that the current governance structure is too complicated for even the lawyers who it governs to understand.  That such a conclusion is an argument in favour of its reform seems to have eluded everyone.

• Two really good articles on the future of lawyers and technology: "Lawyering for the Future" and "Lawyer strikes chord with online DIY divorce"

"we ran out of gas"

This column (ht: Gardner), by a former Rocky Mountain News reporter mulling over the collapse of her newspaper is fascinating, but probably not for the reasons the writer intended (try to avoid rolling your eyes when she pines that the reason she got into journalism was because of... wait for it... Watergate - that in itself probably explains more about why "journalism" is "collapsing" (according to journalists) than anything else).  Here's the bit I found really interesting:

Friday, the Rocky, with a daily circulation of 210,000 and 457,000 on Saturdays, became the nation's largest newspaper to cease publication in an economic recession that already has sent the Chicago Tribune and both of Philadelphia's daily papers running for bankruptcy cover, among others, and put a For Sale sign on the Miami Herald.

I'm happy to admit that I've never run a business more complicated than a table at a garage sale, but I think I can speak with a certain level of confidence in concluding that if you've got more than 200,000 people a day who are willing to pay for your "product" and you still can't figure out a way to manage an operation which takes in as much as it spends, then perhaps that's an indication that there's nothing wrong with "journalism", or "the industry" or "the internet" or anything else except the idiots who are running the business.

"no clear indication"

One of the stranger things about studying legal philosophy is coming across all the lunatic implausible scenarios invented by the philosophers to illustrate their point (an actual example from a class I took many years ago: a madman has commandeered a tank and is blowing up a neighbourhood, killing dozens - your task is to attempt to stop him; complication: the madman has also kidnapped a bunch of babies and strapped them to the outside of the tank, with the result that any attempt to stop him will also kill the babies; discuss the moral implications of either trying or not trying to stop the madman in the tank).

It is useful, then, to be reminded every once in a while that life as it is actually lived is so much stranger than any fiction we could come up with:

During his glory days as a pro wrestler, Verne Gagne shared the spotlight with other burly men in trunks, guys with names like Killer Kowalski, Mad Dog Vachon, The Crusher and Baron Von Raschke.

But all of that seemed well in the past until just weeks ago, when authorities say Gagne, 82 and suffering from Alzheimer's disease, apparently body-slammed a 97-year-old fellow patient at the suburban nursing home where they both lived, causing the man's death.

"it could be quite shocking or it could be quite gratifying"

An English publisher and author are experimenting with a "pay what you wish" model for the author's next book (a book which bears the perhaps unintentionally hilarious (in light of this initiative) title What Price Liberty?.  Which is an excellent idea, but one thing might make it even better: the publisher should add an option which allows purchasers to "top up" their payment afterwards.  In other words, it would be interesting to see if purchasers who decided to pay $0 or, say, $5 would, after downloading and reading the book, be willing to "top up" their payment - in effect saying "I thought I was going to get $x worth out of this purchase, but in fact I got $x+y - here's the $y".

The Hermeneutics of Excerpting

Connie Crosby poses the question: How Much Excerpting of the News is Acceptable?  By which is meant, how much of a news report from an MSM website can you "excerpt" on your own website/blog/etc. before it constitutes copyright infringement?

Connie links to a New York Times article about the issue, which is usefully summarized by the following passages:

Generally, the excerpts have been considered legal, and for years they have been welcomed by major media companies, which were happy to receive links and pass-along traffic from the swarm of Web sites that regurgitate their news and information.

But some media executives are growing concerned that the increasingly popular curators of the Web that are taking large pieces of the original work — a practice sometimes called scraping — are shaving away potential readers and profiting from the content.

The NYT article essentially concludes that no one knows what the answer is, and that those " in search of a legal word limit are sorely disappointed". 

Here's the important thing to keep in mind (well, important for Canadians, at least): whatever the answer is in the United States to the question which Connie posed, it is likely that the answer is different in Canada.

The reason for that is that the analysis under US copyright law turns on the vagaries of the "fair use" doctrine.  And in Canada, we have no "fair use" doctrine - we have only a related concept known as "fair dealing".  Regrettably, "fair dealing" under Canadian copyright law has not received extended consideration from the courts - at least not by comparison with the articulation of the "fair use" doctrine - so its contours remain largely unclear.  In order for excerpting to qualify as "fair dealing" (and therefore not constitute copyright infringement), the activity would need to be capable of being construed as one of (a) research or private study, (b) criticism or review, or (c) news reporting.  Unfortunately, except for "research or private study", Canadian courts haven't delved into what those phrases actually mean.  Is a blog which reprints a column or news report in toto with a couple of introductory remarks and perhaps a pithy "Indeed." appended to the end of the post engaging in "criticism" or "review" or, heaven forfend, "news reporting"?  Who knows?  Even if it is, the Copyright Act requires "mentioning" the "source" and the "author" of the original news report - does provision of a hyperlink satisfy that requirement? *shrug*

But the critical analysis really happens once we've dealt with such prosaic considerations.  Then, the criteria for fair dealing set out by the Supreme Court of Canada in CCH v LSUC (which I disccused in more detail here) come into play: the purpose of the dealing; the character of the dealing; the amount of the dealing; alternatives to the dealing; the nature of the allegedly infringing work; and the effects of the dealing on the work.  The latter three would, I think, likely be dispositive in assessing "excerpting": would just providing a link have sufficed? Has there been any "value added" by excerpting? Has the excerpting interfered with, precluded or rendered unnecessary a visit to the original source?  There are no hard and fast rules to be enunciated here because what we're dealing with is a matter of context in every case.  But the broader context (the really broad context, if you will) is that Canadian and US copyright law are likely to come to different (perhaps not radically different, but different nonetheless) answers to the question "how much excerpting of the news is acceptable?".

Copyright Reform

Howard Knopf posts about the impending extension in the UK of copyright protection for sound recordings (I previously posted about this issue here).  He notes that in the UK a group of academics has signed an open letter to the government objecting to the proposed extension.  As Knopf plaintively queries, "if a group of academics in the UK can get together and sign a joint open letter on an important public policy issue, as we also sometimes see in the USA, why has this never happened in Canada?".

I have a broader plaintive query (one which I've been wondering about for a while now): why is it that we still don't have a viable project to draft a proposed revised Copyright Act?  Virtually everybody concedes that the existing Act is a mess - even if you think that it substantively doesn't need correction, it's an unholy mishmash of poor drafting, outdated terminology and nonsensical structuring.  Why can't someone convene a group of academics and practitioners to prepare a model of a revised act?  At the moment, all we've got is unprogrammed criticism and commentary, while everybody waits impatiently for the government to come up with the latest patchwork amendments to a teetering, decrepit building, which will inevitably please no one.  The McGill Centre for Intellectual Property Policy effort at a new Copyright Act wiki seems to have died due to lack of attention.  Lord knows industry lobbyist efforts are focused and effective - what's to stop the rest of us from aiming for a professional, dedicated and clear effort of our own?

Copyright, Kindle and Complication

Howard Knopf's latest post on the Amazon/Author's Guild Kindle brouhaha, which is worth reading in its own right, includes links to this Jack Schofield post (also worth reading), and this post by Lawrence Lessig, which makes use of the term "Corleone-like".

It's worth thinking about the connection between the points which Knopf, Schofield and Lessig raise, and those raised by David Post in this excellent item at Volokh, pointedly entitled "The Death of Copyright, Item #241".  Post's basic point: copyright has gotten way too complicated ("it takes orders of magnitude more time to do the copyright clearances than it does to create the [original] work").  At the interface of new technology and copyright law, it's difficult to see how the former could help but result in complication of the latter.  In a bit of legal judo, perhaps the answer lies in making use of new technology (e.g., the ability to create massive accessible correctable databases) to service the enforcement (and enhanced understanding) of copyright - which may not solve problems of (perceived?) overreach, but at least would assist in rectifying the feeling that stepping into the world of copyright is akin to drowning in quicksand.

That Boy in the Library

One of the most under-appreciated Canadian blogs out there is Michel-Adrien Sheppard's Library Boy.  Always packed with information, including deep linkage, on a variety of topics, it should definitely be in your RSS reader.  Yesterday's post, about the new federal criminal legislation, is typical: information and links to the bills themselves, along with helpful links to a slew of parliamentary reports on mandatory minimum sentences.

"just seem odd"

Chris Selley called the National Post's editorial on the government's recently announced "tough on crime" measures "terrific" - which can only mean he was reading a different editorial from the one which got published by the Post. The editorial, which comes off like it was written by about three different people, each with their own agenda to cram, sardine-like, into 800 words, is an unholy mess of weak thinking, weaker argumentation and, weakest of all, prose construction.

In the second and third paragraphs, we start with the complaint that the new law will not result in more first-degree murder charges.  Unless, of course, it does.  The editorial doesn't manage to get any more coherent from there.  ("How will the Crown respond?  In some cases, we suspect, not by carrying out more first-degree prosecutions, but by bargaining down to manslaughter ... Meanwhile, the tougher-minded prosecutors will be ransacking every file that crosses their desk for the slightest evidence of "gang activity," however meagre.")  But really, even those bold predictions are but dust on the wind (and here readers are encouraged to imagine the gathered editorial writers shaking their heads in wearied frustration) - "we can have no sure idea of the overall effects for many years".  Years people!  We have an editorial to write today!  You cannot possibly expect us to withhold judgment on the efficacy of these proposals!

The next argument is that the courts will inevitably muck up the implementation of the law, by "decid[ing] that the proviso cannot possibly mean what it says in plain English, and [proceeding] to erect an unpredictable body of doctrine around it" - probably not wrong in itself, but it's unclear whether this is a criticism of the legislation, the courts or the entire project of the rule of law (since having courts interpret legislation is, er, part of the deal).  If the courts are that intransigent about getting "tough on crime" (a conclusion with which I have a great deal of sympathy), would we not be better served by the editorial actually saying that, rather than oblique criticism?

From there, things only get stranger - why, quails the editorial, does the proposed legislation only call for tougher measures when offences are committed against "justice system participants" (i.e., court officials, police officers, judges, etc.)?  Why not, instead, clarify that "courts should put denunciation and deterrence first when dealing with crimes against any person"?  Both excellent questions.  The apparent answer?  Because the Liberals and New Democrats "could not possibly" support such a measure (or, in its original iteration, because the Tories could not possibly find Liberal or NDP support, which makes it sound as if the problem is one of detection rather than existence).  Again, is this a criticism of the legislation, or the hard-headedness of the liberal opposition?  Is the argument that the Liberals and NDP don't mind it when us "poor bloody members of the public" get killed?  If the latter, why not just say so?  At least have the courage of your convictions and get the argument out there.

In the final few paragraphs everything flies right off the rails.  The drug trade, we learn, is "dominated by society's most sociopathic hard cases, social dropouts and self-proclaimed outlaws".  Punishing these malcontents is exactly the wrong thing to do, the editorial thunders.  Why, increasing the punishment will only make those dominating the drug trade even more sociopathic, more socially dropoutish and infinitely more outlawy.  Which raises innumerable questions, but here's a sampling: so, then, are we admitting that criminals actually do engage in rational risk-calculation (to the contrary of the usual editorial board bafflegab)?  If so, doesn't that mean that deterrence actually does work?  Wouldn't we then want to deter as much as possible by erecting ever-more strict punishments?  And, if we've managed to create this fancy filtration system which identifies and segregates the sociopathic outlaw dropouts, shouldn't we be arguing in favour of increased penalties against them in order to get them off the streets? 

Perhaps that is to miss the point, though.  After all, this far into the editorial, the editors have decided to throw up their hands at the futility of it all: "But every once in a while, a police officer goes down, notwithstanding the Criminal Code's special sanctions against killing police officers."  It's a glorious sentence, reflecting a glorious argument: we've got these fancy provisions against killing police officers, but they get killed anyway, so really, what's the point, huh? What's your fancy provision against killing police officers gotten you, huh? Just more dead police officers! Not so smart now, iz ya?  Which would be an excellent case to make, if it made the barest lick of sense.  We have "special sanctions" against committing, say, murder, too - but murder gets committed anyways.  Is that somehow an argument against making homicide illegal?

Regrettably, the only interesting and cogent observation of the entire editorial is buried in the last sentence: "Chalk it up as yet another toxic side-effect of our society's misguided war on drugs."  Indeed.  Wouldn't the entire editorial, which achieves the amazing accomplishment of being both turgid and limp, have been better served by exploring the actually relevant question of drug de-criminalization? 

UPDATE: This Dan Gardner column, which could function as the editorial hinted at in the last line of the Post's, really does warrant the descriptive "terrific".